« Still more buzzing about border agents sentence | Main | Any early reports on Eighth Circuit argument on faith-based prisons? »

February 13, 2007

DC Circuit thoughtfully weighs in on crack sentencing after Booker

While it's snowy and cold in Ohio, today the DC Circuit adds some more heat to the Booker world with thoughtful and nuanced work on crack sentencing in US v. Pickett, No. 05-3179 (DC Cir. Feb. 13, 2007) (available here).  There is a lot in Pickett that merits highlighting, but this paragraph may be my favorite and the most important aspect of the decision (and not just for crack cases, but for all cases):

While Booker and § 3553(a) instruct sentencing courts to consider all these "multiple and vague" factors, United States v. Johnson, 471 F.3d 764, 764 (7th Cir. 2006), neither the Supreme Court nor the statute assigns any weight or ranking to the factors.  So how is a court to determine how much influence the factor we are concerned with — the advisory-only Guideline range — should have in sentencing a particular defendant?   One might answer that the Guideline range should be considered presumptively reasonable.  But that would be to confuse the standard this court and several others have adopted for appellate review with the standard to be applied by the sentencing court. A sentencing judge cannot simply presume that a Guidelines sentence is the correct sentence.  To do so would be to take a large step in the direction of returning to the pre-Booker regime.  Another approach, the correct one in our view, is to evaluate how well the applicable Guideline effectuates the purposes of sentencing enumerated in § 3553(a).

I will have more commentary on this important ruling after I have a chance to take it all in (and finish shoveling my driveway).

UPDATE:  For many reasons, Pickett is a joy to read.  Unlike other circuits that have swallowed wholesale the government's arguments for requiring district courts to attend slavishly to the crack guidelines, Pickett exposes the many flaws in an approach to post-Booker sentencing that does not take seriously the US Sentencing Commission's own forceful criticisms of the unduly harsh crack sentences.  And the timing is great, since these issues are implicitly — if not explicitly — before the Supreme Court next week in Claiborne.

February 13, 2007 at 11:00 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference DC Circuit thoughtfully weighs in on crack sentencing after Booker:

» DC Circuit: on crack, guidelines should be mapped onto § 3553(a) from Appellate Law
SLP posts about the DC Circuit’s enlightened work on Booker, which seems to indicate that, unlike other sentences, they are not at war with all it standard for. Professor Berman will provide commentary as soon as he finishes shoveling his [Read More]

Tracked on Feb 13, 2007 11:29:10 AM


Reading this opinion is like coming out into the fresh air after a long imprisonment in a cell, deprived of all common sense. As Doug put it long ago, What rule of law says that courts cannot reconsider the wisdom of guidelines principles like the ratio of crack to powder cocaine sentence engraved in the guidelines? The D.C. Circuit sensibly answers, "No rule," and makes clear that courts are not bound by the ratio in the guidelines.

One interesting question here, of course, is how much this opinion is in conflict with the opinions of the six circuits listed on page 16 of the opinion, which the D.C. Circuit characterizes simply as having "rejected attempts by district judges to adopt and apply a ratio different from the current 100-1," and thus, not in conflict with its own view. But the rationales of those cases are, I believe, in direct conflict with the rationale in Pickett, whatever the Circuit says.

Posted by: David Lewis | Feb 13, 2007 12:33:17 PM

Mr. Lewis has hit the nail on the head. Pickett is good news for many reasons, and I don't mean to rain on the parade of those who have worked hard to see this reasoning adopted by and result reached by a court of appeals.

Nevertheless, the lead opinion is indeed glib both about (1) the degree to which this case differs from Pho and what I'll call its progeny, and (2) what exactly district courts are now supposed to - - and allowed to - - do. All we really know after Pickett is that it's legal (and reversible) error for a district judge to refuse to consider a defendant's argument that applying the 100-to-1 guideline in the Drug Quantity Table in his particular case would contravene section 3553(a). But what if the judge considers that argument and rejects it? What if the judge accepts the argument, but grants only a minor and symbolic reduction from the guidelines sentence? There are many more "what ifs," and I can't help thinking that, more than two years after Booker, it's about time for someone to tell district courts what they can and can't do about the crack/powder distinction.

Posted by: anon | Feb 13, 2007 1:12:56 PM

Given that the DC Circuit is a presumption of reasonableness jurisdiction, I'd be interested to see what would happen if a below-the-Guideline sentence was imposed. Of course, we should have _Rita_ and _Claiborne_ by then, so it's probably moot.

Posted by: JDB | Feb 13, 2007 3:24:24 PM

When does the crack law go into effect?

Posted by: Student | Oct 29, 2007 7:33:56 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB